European Communities Bill 2006: Committee Stage.

Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill."

I oppose section 2, which is set out as follows:

Section 3 of the Act of 1972 is amended by—

(a) the substitution of the following subsection for subsection (3):

"(3) Regulations under this section may—

(a) make provision for offences under the regulations to be prosecuted on indictment where the Minister of the Government making the regulations considers it necessary for the purpose of giving full effect to a provision of the treaties governing the European Communities or an act adopted by an institution of those Communities, and

(b) make such provision as that Minister of the Government considers necessary for the purpose of ensuring that penalties in respect of an offence prosecuted in that manner are effective and proportionate, and have a deterrent effect, having regard to the acts or omissions of which the offence consists, provided that the maximum fine (if any) shall not be greater than €500,000 and the maximum term of imprisonment (if any) shall not be greater than 3 years.”,


(b) the insertion of the following subsection:

"(5) In this section—

‘maximum fine' means the maximum fine to which a person shall be liable on conviction on indictment of an offence;

‘maximum term of imprisonment' means the maximum term of imprisonment to which a person shall be liable on conviction on indictment of an offence.".

I strenuously opposed this Bill in its entirety on Second Stage. My opposition grows stronger every day but I chose not to table any Committee Stage amendments because this is a Bill that cannot be improved by amendment. The only way to improve it is to throw it out altogether and begin considering anew the issues it raises. I did not receive an adequate response when I made this proposal last week.

In his speech last week, the Minister of State, Deputy Treacy, acknowledged that the driving force behind the Bill are two recent Supreme Court judgments which called into question the legality of the way in which some European legislation was transposed into Irish law over the years. The Supreme Court effectively decided that for all these years, the Executive exceeded its powers under the Constitution. It usurped the powers of both Houses of the Oireachtas and consistently abrogated to itself powers that rightfully belong to those Houses.

It is interesting to note the inevitable reaction of the Executive to being caught out like this. The Government contends that the Supreme Court, in its usual technical and excessively fussy way, merely accused the State of failing to dot the i's and cross the t's. This means we must pass a new law giving the State the powers which the Supreme Court says we do not have but which we believed we did. In other words, the Government's way of fixing a wrongdoing on its part is to make it legal, not only for the future but also retrospectively by validating all the wrongful actions of the past.

The Government did not for a moment consider the stance it should have taken, which is to acknowledge that the Supreme Court caught it out in exceeding its powers and that it must be careful not to make the same mistake in future. This is the line that should have been taken but it is not a great surprise that it was not. Whenever the Executive makes a decision, it is invariably because it suits it rather than that it answers the wider need. It is for us, as part of the Legislature, to resist this approach all the way.

This section is perhaps the most regrettable element of the Bill because it abrogates to the Executive the power to create indictable offences by ministerial edict. This shows up at its starkest the fundamental weakness of the entire project before us. It may seem elementary to remind ourselves of the basic fact that the reason we have a Legislature is to make law which the Government then implements. This is a clear division of powers. In practice, because the Government dominates the Legislature, it alone has the power to make laws as it wishes. Bypassing the Legislature is a very different matter and should be resisted every time it is proposed. On Second Stage, I spoke at some length as to why this important Bill is fundamentally bad legislation. As we consider this section, it might be worthwhile to revisit some of what I said on Second Stage. I hope Members have thought further about the important issues at stake.

What is not at stake is the value of our EU membership or that Ireland has benefited hugely from it. I am well aware of the negotiating principle of when in doubt, bang the table. The Minister's equivalent is when his argument is weak, play the EU trumpet. There is no difference between me and the Minister in our fundamental enthusiasm for the EU or in the determination that Ireland should live up fully to its responsibilities and obligations of membership. I part company with the Minister on the respective roles that should be played by the EU, national governments and legislatures.

It is commonly accepted that one of the EU's fundamental problems is its perceived distance from its citizens. This is not just an image problem with practical consequences. With more of our lives dominated by matters at EU level, it is important that people feel personally involved with the institutions and they are interested enough to monitor the EU's day-to-day decision-making processes.

There are many obstacles to making this a reality. One is the relative influence on the EU decision-making process exercised by officials rather than by politicians who have a mandate. I refer not just to the Brussels bureaucracy which I described on Second Stage as the most maligned civil service in history — the Official Report quoted me as saying "most malign civil service", the fault for which was probably in my diction or perhaps it was a Freudian slip on somebody's part — but also to the part played by Irish officials in the day-to-day interface between the individual member states and the European Commission. Much of the decision making on EU affairs is taken by and between officials, with politicians coming in at the last minute to rubber stamp and add some finesse to the decision. I refer to the bread and butter EU decisions rather than the headline issues aired at EU summits.

Added to this, the European Commission has the sole right of initiating EU legislation. There is already a system that is overbalanced in favour of officials to the detriment of an input from those who have been elected. Against this, there are several valuable safeguards. We must resist having them diluted as this section seeks to do.

The most important safeguard involves the role of national parliaments. These are closer to the people of their countries than a bureaucracy based in another country. In the soul searching carried out following the rejection of the first Nice treaty, the Oireachtas adopted a raft of measures to increase scrutiny of European legislation that was until then passing into our law unnoticed. In the discussions which gave rise to the EU constitution, a prime consideration was increasing and deepening the role of national parliaments in the overall European process. This section flies in the face of this. It is possible to argue that it provides for efficiency by replacing primary legislation with the simpler process of a statutory instrument in the form of a ministerial order. I argue against these provisions on the grounds of openness and transparency. We must increase rather than dilute the amount of EU business that is carried out in the full light of day. Ministerial orders, in practice, are invisible.

The Senator is speaking against the principles of the Bill rather than the section.

No, I am speaking on section 3.

We are still on section 2.

I apologise. I meant to discuss section 3.

Is section 2 agreed to?

I respect the cogent, thoughtful and detailed contribution made by Senator Quinn. Under section 2, I understand the Government will not initiate indictable offences. This section relates to the European Communities Act 1972 which brought Ireland into the EEC. The Bill is a result of a Supreme Court judgment relating to penalties imposed on two fishermen in County Donegal. Will the Minister of State clarify the issue of the maximum fine?

Senator Quinn's contribution was a reiteration of a Second Stage speech. He spoke about the transparency of the scrutiny of EU legislation but I could not make out his point on the section.

The terms defined in the Bill reflect the close interdependence that exists between national and EU law at this mature stage of our EU membership. All too often legislative terms employed in EU legislation are accused of being deliberately opaque. That is not true. The process of law making from its inception in Brussels to the implementation at national level still remains poorly understood even though we have been successful EU members for more than 30 years. Constant allegations are made that EU proposals could be processed without any political input, a charge repeated on Second Stage.

It is not the case that there is any lack of political input when decisions are being arrived at in the EU. Politicians, not officials, take the decisions. The Commission is vital in ensuring a level playing field. It proposes, discusses, debates, assesses the challenges and complaints from European citizens and examines the requirements of various governments and the debates at European Council level. Following that, it is charged with the responsibility of creating a legislative working document which is then debated through the political process. At no time has the Commission the power to take decisions; it only has the power to initiate work to be done. We work on that basis.

European Community law-making is an intensely political process involving the governments of the member states, which carry with them their respective democratic mandates, and co-decision with the European Parliament. EC law goes through an elaborate and usually lengthy process which has crucial political input at all key points. It is often mistakenly assumed that decisions are taken by officials or by the European Commission. This point was inferred by a number of Senators last week but it is not how things work within the Union.

Under the European treaties, the Commission has the right to make proposals for legislation and only a very limited law-making power on a basis delegated by the Council. The Commission's role is important in ensuring that proposals are designed to serve the collective European interest and not the interests of individual member states.

The main EU decisions are made in the Council of Ministers where Ireland is invariably represented by Ministers or Ministers of State acting on behalf of the Government. In Ireland, the National Forum on Europe regularly debates European issues. Ministers, especially the Minister for Foreign Affairs and I, regularly attend meetings of the Joint Committee on European Affairs to debate proposals from the General Affairs and External Relations Council and other European Councils. All aspects of these proposals are discussed in general and in detail. There is cross-fertilisation of ideas and responses and we leave those meetings armed with the knowledge of what our legislators require of us in making decisions.

We go to the Council meetings, therefore, with the back-up of our officials, diplomats, officials in Brussels and civil servants in Ireland and in the Attorney General's office. All these support us and ensure that what we do is constitutionally and legally correct and is fair and equitable for the people of Ireland. These officials operate in a supporting role and do not take decisions. It is only when a proposal reaches the ministerial level that it can be adopted by the Council of Ministers.

With regard to some of the points raised concerning section 2, including those raised last week, I explained last week that this section will give Ministers of the Government the power to create indictable offences in regulations made pursuant to the European Communities Act 1972 where the Minister deems such a sanction necessary for more serious breaches of EC law. Some Members expressed concern at the perceived high levels of the penalties provided for, namely, a maximum fine of €500,000 and a maximum term of imprisonment of three years. Other complained that the scope of the power being given to Ministers was very wide-ranging.

Two points should be made. First, the penalties cited are the maximum penalties under the Bill. These will not be included in every regulation. In practice, many regulations adopted to transpose EC measures will continue to provide only for summary offences. The level of penalty will need to match the seriousness of the offence. The main point that must be borne in mind is that the European Commission proposes, the European Council makes decisions and we, as members of the Union, are obliged to accept those decisions and implement them in our domestic law. On the principle of subsidiarity, it is the legislators of this Parliament who make the decisions on what penalties are to be applied and what regulations are to be implemented through statutory instruments or whatever mechanism. We make those decisions on the basis of the power given to us under the Constitution and pursuant to the 1972 Act.

I can offer some examples. The Sea Pollution (Amendment) Act 1999 provides for penalties of €10 million and-or five years' imprisonment. Under the Veterinary Practice Act 2005, penalties of €320,000 and-or ten years' imprisonment are provided for. Under the Animal Remedies Act 1993, a person who has in his or her possession a prohibited remedy or an animal which has been administered such a remedy is liable on a first offence to a fine of €100,000 or ten years' imprisonment or both.

The Oireachtas passed that legislation. We are capping penalties in European legislation at €500,000 and a maximum of three years' imprisonment. On the principle of subsidiarity and taking account of our responsibilities, therefore, we are capping the powers that Ministers have to make regulations on all those issues even though other legislation permits much greater penalties. The penalties in this Bill of a maximum of €500,000 fine and up to three years' imprisonment — and the courts will make the decision on the actual fine and the term of imprisonment within those limits — are not especially excessive when compared with other legislation.

If we are to live up to our obligations, we must be in a position to provide for more stringent penalties where these are necessary. In some cases, it is necessary to provide for indictable offences to give proper effect to certain aspects of EC law. Indictable offences will only arise where this is necessary to ensure that we can provide for sanctions which are effective, proportionate and dissuasive. There is no point having legislation and penalties unless they dissuade citizens from breaking the law. There is a deterrent and people know what the impact will be if they break the law. That does not mean people will not break the law but their chances of breaking the law are lessened when the penalties are enforced.

Legislators have the power to put these penalties into practice, and it is critical that we do so. We are bringing uniformity to the maximum power, on the principle of subsidiarity, that we are transferring to our Ministers to make statutory instruments and secondary legislation. We are capping and restricting the power of Ministers and I have no difficulty with that position.

The European Union has evolved significantly in the past three decades. This means that the range and scope of EC law has increased. Many such laws have far-reaching objectives to which member states must give full legal effect at national level.

The maximum levels of the penalties have been set following careful consultation on what is necessary to implement EC law properly and a review of practice in other countries. In some cases, more stringent penalties will be required. Ministers in these cases will have to provide for such penalties either in existing legislation already approved by the Oireachtas which provides for such penalties or, if no such legislation exists, Ministers will have to propose new legislation which will be fully debated by the Oireachtas. We are satisfied that the levels of penalties are reasonable and equitable.

Second, in this Bill the Minister will only have a limited power to make provision for indictable offences where this is necessary to meet our treaty obligations. In such cases, the Minister will need to operate within the parameters laid down in section 2. In this case, "necessary" means precisely what it meant in 1972 when the Oireachtas gave Ministers powers to take the actions required nationally to give effect to our EC obligations. This requires Ministers to make a careful assessment of what is required of us nationally to transpose a specific EC measure into domestic law.

There are safeguards. The courts, in a number of important cases, have reviewed the manner in which the State implements EC law by way of secondary legislation. The courts have outlined in these cases that there are parameters which must be respected when implementing EC law by way of secondary legislation. Essentially, secondary legislation should only be used where the EC measure sets out in sufficient detail the principles and policies to be implemented. If this has not been done, the courts have indicated that in those instances, primary legislation should be used. Thus, Ministers' decisions when implementing EC measures will ultimately be subject to challenge in the courts, which are key arbiters on our precise legal obligations under the treaties.

I pay tribute to Senator Quinn, as a committed European and national politician, for the contribution he is making in this debate. On behalf of all our colleagues I congratulate him on being elected chairman of EuroCommerce, an important body in the EU. It is important that we fulfil the goal of the EU, the Single European Act, the thrust of European law and the ethos of the union, that is the mobility of goods, services and people.

Ireland has a critical responsibility to fulfil its obligations as a member state under the EU directives past and future. To ensure we have an administratively and legally effective solution we ask this House to ratify this legislation, taking into account the fact that we already did so in 1972 and that we have acted fairly and successfully in implementing European law. However two cases under the Common Fisheries Policy, taking into account the secondary legislation the Supreme Court debated, make it mandatory that we as legislators bring our law up to date so that there is no doubt about the capacity of Ministers to make statutory instruments and secondary legislation to execute our obligations as members of the EU. On the principle of subsidiarity and equality we must ensure it is administratively effective, legally correct and uniform in its application and that we are capping the powers Ministers can have today and tomorrow in the exercise of those serious legal duties.

Question put and agreed to.

I move amendment No. 1:

In page 4, lines 38 to 45, to delete subsection (2).

What I have just heard from the Minister of State in response to Senator Quinn's earlier intervention goes a long way towards supporting my amendment. If we want to keep Europe relevant and real and ensure our part in the European project continues strongly, we must ensure we do not distance the people of this country from the European institutions, all matters flowing from them and European legislation. Although the Minister of State's speech was an extraordinarytour de force, I question its relevance to the man or woman on the street. While it is politically proper, this use of the jungle of jargon of European language can make the citizen of Ireland and Europe feel distant from the European political process. Notwithstanding the necessity of the legislation before us, it is crucial that it is dealt with through primary legislation. My amendment reflects our disquiet at the ease with which statutory instruments would become the norm rather than the exception.

In the aftermath of the defeat of the first Nice treaty we had a major debate. Some good came from it as certain measures were introduced to try to deal with the situation caused by the defeat of the Nice treaty. We all, including Deputy Treacy in his ministerial capacity, agreed that we had to include the citizen to the maximum extent and that no matter what measure was coming from Europe, a major one such as the constitutional treaty or a minor directive, the citizen had to be part of the process. The free use of statutory instruments to transpose European regulations and directives goes against the spirit of what we all agreed two, three or four years ago. It goes against the spirit of the progress we made by the introduction of the Sub-Committee on European Scrutiny. It goes against the spirit of the public meetings we have had across the country on the EU constitution. If that good work is to be fruitful and effective we must ensure we use the parliamentary process to the full, not in a minimalist, rubber-stamping fashion. That is why I submit to the Minister of State that primary legislation rather than statutory instrument must be to the fore in the European project from an Oireachtas perspective. I hope the Minister of State considers my comments positive and helpful. We can win votes at Oireachtas level, but as we saw in the Nice treaty vote, unless we can make people feel part of the project the Leinster House ship may travel in a different direction from the rest of the populace. Fully debated legislation going through both Houses must be the rule rather than the exception.

I understand where Senator Bradford is coming from. We have spoken at length in this House and at the Joint Oireachtas Committee on European Affairs on the transparency necessary to implement regulations and EU law. I welcome the fact that the Minister of State has noted our concerns, has responded accordingly and will ensure statutory instruments will not be implemented in a dictatorial fashion but will reflect the public. The public wants to know when there are directives out there and when they are implemented. When EU laws impact on domestic law we must take cognisance of the need for transparency. I accept the Senator's concern, and the Minister of State has also accepted it and has reassured the House that it will be considered when he has to implement any regulations that are part of EU law. I have no doubt the Minister of State will take that into account.

While I appreciate Senator Ormonde's words and I am convinced the Minister of State intends that, he is Minister of State for the moment. We are passing legislation that gives a future Minister the opportunity to introduce statutory instruments instead of primary law. The Minister of State has correctly described it as more "effective". While it will be effective, it will not fulfil Senator Bradford's aim of bringing citizens closer to the European idea. Subsidiarity, about which the Minister of State has spoken, is weakened as we avoid primary legislation and permit statutory instruments. The Nice treaty failed here but we managed to get it through the second time. In France and the Netherlands they turned down the constitutional treaty, and various explanations were given but I believe it was because the citizens were removed from central Europe. This closeness to the citizens is in danger of being damaged as we pass legislation that is not open to the full glare of publicity. Here and in the rest of Europe, every time we pass legislation by statutory instrument instead of primary legislation that passes through the Houses of the Oireachtas, we give the Minister the possibility to pass legislation that is not noticed. It is the wrong way and we should reconsider it.

I have much sympathy with the argument that is being made. During Second Stage and on previous occasions I have argued that there is a vacuum in the relationship between the Executive and the Oireachtas on European matters. I appreciate that the constitutional treaty was going a long way to tidying up many of these deficiencies and Senator Quinn referred to a strengthened role for national parliaments.

I wondered why there are references to EC and EU. One learns something new every day. I am grateful to officials from the Department of Foreign Affairs for explaining this to me. They have been deservedly acknowledged in the past and their ability to weave their way through EC law is legendary. When one refers to laws, one uses the term European Community. When one refers to external matters, the term is the European Union. Why does this confusion exist? We should not be surprised the public is confused about what is happening in Europe when two descriptions refer to it. The draft European constitution will address this and perform a housekeeping role on matters such as these. The constitutional treaty addresses many abstract issues that cause such confusion. Senator Ormonde has expressed this in her contributions as spokesperson on European affairs in the Seanad and in the Forum for Europe. Why should we be surprised that half the country does not vote on matters regarding Europe?

I will continue to make the point as long as I am a Member that I do not understand why this House is not used in a more efficient manner for European legislation. The Administration should use this House and the expertise contained in it. The Minister of State is the latest in a long line of Ministers who have dutifully acknowledged the expertise in the House. The House has the structure, membership and time required because it is a less adversarial Chamber than the other House. It can debate matters in a non-confrontational manner, as seen earlier on the Genealogy and Heraldry Bill. I hope the momentum encouraging the people to vote for the draft EU constitution might include a sideways glance at the continuing role of this House, placing us in the scheme of European primary legislation on directives. Senator Quinn has advised that issues regarding this Bill are effected through statutory instruments and regulations that are not passed by either House of the Oireachtas. The Executive proposes and the Executive disposes.

I have confidence in the Minister of State and whoever will represent the Government in EU matters. This House could be used as a Second Stage Chamber. Legislation to be transposed into Irish law could be debated by this House. We could identify its flaws. This would not be for our sense of ego or because we are wonderful people to discuss EC law. The general public could then find out about the detail and minutiae of EC law. Thank God for Jimmy Walsh andThe Irish Times because I would not like to rely on other national newspapers to be informed of what goes on in this House.

I nail my colours to the mast on this issue. I am not critical nor do I seek to upset the apple cart. I propose an argument that would enhance accountability and transparency of EC law. It would also give an opportunity to the public, who we expect to be knowledgeable about the draft EU constitution, to understand what EC law comprises.

I sincerely thank all Senators for the focused contributions. Senator Bradford asked what ordinary citizens would think of this situation. We can be guided by available information. According to the last European barometer poll, 87% of Irish citizens were positively in favour of the EU. Some 50% had a strong interest in the EU and 30% were committed to engaging with EU issues. We were pleased that we led EU countries in this table.

The citizen is part of the process and we as Members of the Houses of the Oireachtas are representatives of the citizen. The Sub-Committee on EU Scrutiny, comprising legislators, also represents citizens. The European Parliament, the largest and most democratic parliament in the world, is directly elected and represents the citizens of the European Union. By direct decision of the Council, or by co-decision with the Parliament, decisions are taken on a democratic basis after an average of three years' gestation, discussion and debate. At the Council of Ministers and in partnership with the Parliament a consensus is reached on directives. This is then sent to the Oireachtas, the representatives of the citizens, to ensure it legislates for the decisions taken.

Member state governments have a democratic mandate. Europe is a reservoir of democracy in global terms and all member state governments represent citizens. This Bill is about the implementation of EC law, initially at European level. On the basis of subsidiarity and membership of the EU, our citizens expect us to take account of the unique character of European law. It is initiated by the Commission and negotiated under various treaties, councils and in the European Parliament. It is ultimately agreed that it is mandatory on us, as legislators and as Government of a member state, to implement decisions in tandem with others on the basis of subsidiarity, taking into account our constitutional position and the peculiarities of various sectors of society, the economy and the social partnership agreements. Legislators have the ability to pass laws that are equitable and fair, even-handed and balanced and to ensure that penalties proposed are effective, dissuasive and proportionate. That is the purpose of the Bill.

Section 3(1) will permit Ministers to make regulations to give effect to EC law under the power already granted by the Oireachtas in domestic legislation. This is a perfectly reasonable provision which serves to avoid unnecessary duplication of legislation. Prior to the Browne and Kennedy judgments, it was thought possible to use a domestic regulation-making power for the purposes of giving effect to EC law, provided that it fell within the parameters of the particular domestic Act. The secondary legislation should be linked to the primary Act. In this case the original legislation of 1959 was passed prior to 1972 and the secondary legislation was passed in 1998. The Supreme Court struck it down based on the doubt surrounding the link between the three. On that basis we must revisit it and ensure the link is clarified and given the full force of the law. Consequently, we are debating it to ensure the legislation can stand the test. When penalties are enforced they should be legislatively powerful and operable in this jurisdiction. The Supreme Court held that such domestic regulation-making powers were not available for the purposes of giving effect to EC law unless the domestic legislation explicitly provided that it could be used for the purpose of implementing EC law. Prior to 1972, nobody could have created a situation under the Constitution whereby we would pass laws that would conform and adhere to the European Union. We presumed the 1972 Act would do that but we have found as a result of a Supreme Court decision in two cases that this was not so.

Consequent to that it behoves us as legislators to rectify the matter and ensure the legalities are clarified and perfected. This would mean the components of law, be they European directives, domestic law, secondary legislation or statutory instruments, have the force of law which is full, legal, operable, acceptable to the Supreme Court and fair to the citizens of the land. It is therefore necessary to make explicit provision for domestic powers to be used for the purpose of implementing European Community law.

In 1972, the Oireachtas gave Ministers the power to give effect to European Community measures through statutory instruments. At that time the Oireachtas indicated that Ministers, in making such regulations, could amend other legislation, including primary legislation, when necessary for the purposes of giving effect to the European Community law in question. This was required because of the primacy given by people to European Community law when they passed a constitutional amendment in 1972 which enabled us to accede to the European Community.

Section 3(2) replicates what is already contained in the 1972 Act with regard to regulations made for the purposes of implementing European Community law. As the new power will be used for dual European Community and national purposes, it is necessary to replicate the provision existing in the 1972 Act allowing regulations made for the purposes of giving effect to European Community law to amend legislation, including primary legislation, where necessary.

What is being proposed is no more than what was already provided for in the 1972 Act, although its remit is more extensive on this occasion. It is worth noting that section 3(2) is limited in its scope. It cannot be used to amend this Bill, the 1972 Act or the relevant section of the primary legislation being used to create the statutory instrument. The constitutional validity of this approach was accepted by the Supreme Court in the Meagherv. Minister for Agriculture case.

There are safeguards in place and a Minister can only use existing primary legislation to give effect to a European Community measure if the existing primary legislation relates in whole to the subject matter of the European Community measure. For example, a Minister cannot use the Institutes of Technology Act 2006 to give effect to a European Community measure on water quality, as it is not permissible to jump from one to the other.

However, it makes no sense if a Minister could not use, for example, an existing Act dealing with water quality to give effect to a European Community measure on the same subject. There would be cohesion, parallelism, linkage and commonality. On such a basis, it would be practical and sensible to ensure the legislation and the right to create secondary legislation is allowable under the Act.

This section will correct this anomaly and allow primary legislation which has been fully debated by the Oireachtas to give effect to relevant European Community measures which cover the same subject matter as the existing legislation. As outlined earlier, the courts have set out the parameters within which it is acceptable to use secondary legislation to implement European Community measures. According to the courts, in some instances it will not be appropriate to use secondary legislation and primary legislation will be required. Ministers are always subject to the review of the courts when using secondary legislation. I ask the House to accept the section as laid down and I regret I cannot accept the amendment so generously tabled and well debated by the Senator, and so well supported by the House.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 21; Níl, 17.

  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.


  • Bradford, Paul.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McCarthy, Michael.
  • O’Meara, Kathleen.
  • O’Toole, Joe.
  • Phelan, John.
  • Quinn, Feargal.
  • Ryan, Brendan.
  • Terry, Sheila.
  • Tuffy, Joanna.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Cummins and Quinn.
Question declared carried.
Amendment declared lost.
Section 3 agreed to.
Question proposed: "That section 4 stand part of the Bill."

I oppose section 4. We have the advantage of the helpful advice received from the Minister of State's office of his views on our amendments. The Minister of State expressed surprise that I oppose this section. He recounted my comments made last week that we must respond to the Supreme Court judgment, which we do. However, needing to respond to the Supreme Court judgment and how we respond to it are different matters.

In a recent Supreme Court case, a written submission was made but not argued orally in court concerning the retrospective nature of the type of statutory instrument mentioned in section 4. On November 28, the Supreme Court judgment found against the appellants. This is my concern about section 4, namely, the retrospective nature of what we are attempting. Obviously, the Government and the Minister of State must respond once the Supreme Court adjudicates, but how we respond is what is being debated in respect of this amendment. This effort to put everything in order retrospectively, to correct with one stroke of the pen difficulties which would have arisen and to make right issues which may have been wrong, is something about which we must be concerned.

The power we are giving the Minister of State and the Government through the introduction of section 4 is excessive and is not the only necessary response to the Supreme Court judgment. If Members excuse the pun, it is certainly a rush to judgment.

I would again be grateful for the Minister of State's clarification on this. I was of the opinion that because the issue of validation arose on Second Stage, the Minister of State went quite a long distance in explaining the reasons. Am I correct in saying that apart from section 2, it also formed the core of the Bill in that it relates to the validation of certain statutory instruments? Irrespective of and despite my earlier comments about the processes of statutory instruments, this Bill is essentially about where statutory instruments are implemented because there is an obligation on the Government under primary legislation already in place to give effect to what would be the obligations of our membership, for example, in respect of indictable offences and maximum fines. That is, essentially, what this section is about. I would again be grateful for the Minister of State's clarification.

I support Senator Bradford's proposal. The questions of retrospection and validation of a statutory instrument are clear in this. I am opposed in principle to the effect of the statutory instruments being used. I know Senator Ormonde has already accused me of making a Second Stage speech on this matter. However, the truth is that ministerial orders are, in effect, invisible. They are stealth legislation and are not subject, in practice, to any scrutiny and rarely, if ever, raise themselves above the parapet and into public visibility. There is a place in the overall scheme of things for ministerial orders and statutory instruments, but we should be very careful about what we send into this realm because, in effect, what we are doing is giving up accountability and consigning the matter into the outer darkness of invisibility. Ministerial orders are very popular because, in my experience, many officials have a horror of getting involved in the legislative process and much prefer to do it when they only have an audience of one.

The net effect of this Bill as a whole will be to make it possible for a European legislative proposal to pass through the entire process, from conception until promulgation into law, without the benefit of any political input. Section 4 states that "Every statutory instrument made before the passing of this Act . . . shall, in so far as it purported to give such effect, have statutory effect as if it were an Act of the Oireachtas." It is the very principle of this which worries me because I believe what we are doing is incorrect. It will certainly be effective in making legislation work but it will not bring our citizens closer to the European Union. This is what we should be aiming to do at the same time. I support Senator Bradford in his effort to replace this section.

I would hate to think our Minister of State is not accountable, which seems to be the implication of what has been said. It appears to imply that statutory instruments give the power, as opposed to the introduction of secondary legislation, which would give the power to the Houses of the Oireachtas in respect of implementing any EC law. I would hate it if the Minister of State were unable to overcome that problem and if he were to say that it gave him such power that he was no longer accountable. That is not what this section is about. I am reading it and am glad the Minister of State has written it down to clarify the position. I think he knows exactly what he is doing by making his statement. It is too loose otherwise. He could not possibly make a statement in the House which could be interpreted as his saying that he is not accountable, that any EC regulations introduced are not transparent and that he has the power to ride roughshod over everybody. I could not stand over that and I have no doubt that this is not the Minister of State's intention, but I will let him speak for himself.

This is again a very interesting debate for which I thank all the Senators involved. Last Thursday and again today, Senator Bradford clearly stated that he fully accepts the necessity and urgency of this Bill and I think all Senators accept this, which I appreciate. Senator Bradford stated that the Supreme Court judgements needed to be responded to. This has been the theme of my speeches from both last week and this week. Despite this, Senator Bradford now proposes to remove from the Bill one of its essential elements, which is the very provision that responds to and seeks to deal with the consequences of the Supreme Court judgements.

This section aims to remove uncertainty and doubt about the status of the secondary legislation affected by the Supreme Court judgements. The desirability of doing so was widely acknowledged last Thursday. When passed, this section will confirm the validity of the hundreds of statutory instruments, while at the same time protecting the constitutional rights of our people. Again, we must have balance. We protect the validity of the statutory instruments and also protect the constitutional rights of our people. The Legislature must respond to the Supreme Court decisions and we, as legislators, are doing so in this Bill.

It seems irresponsible for the Government and the Houses of the Oireachtas to require every one of the hundreds of those regulations to be remade, re-enacted and debated again. We would have a current debate on historic situations that had been part of our corpus of legislation over the years. This would seem to be a waste of parliamentary time and legally unsound. After all, they were adopted in good faith on the assumption that Ministers were perfectly entitled to use domestic legislation to give effect to EC law. It was accepted by everybody — lawyers, legislators and the populace at large — that this was the proper thing to do. Section 4 seeks to validate those regulations and confirm the aspirations and beliefs of all the different parties to all these legislative situations, be they our citizens, legislators, lawyers or our Governments.

The Supreme Court in Brownev. Attorney General and Kennedy v. Attorney General held that a regulation-making power could only be used to give effect to EC law where it specified this as one of its purposes. I highlighted the specific timelines which had given rise to this problem in the case brought by that fisherman prosecuted under an order in 1998 made under an Act passed in 1959 to give effect to treaty obligations we undertook when we joined the EC in 1973. In this legislation, we are tying all the periods and legislation together. We are giving validity to all the Acts to have secondary legislation attaching to them and taking that into one commonality of EC law that under such law, this Act copperfastens the initial decisions and legislation passed in the European Communities Act 1972. We are bringing all this together to have clarity and full legality and force of law, which is very important.

This Bill is intended to ensure uniformity in our mechanism for meeting our EC obligations and to end any uncertainty regarding measures introduced over the past 33 years. It does so by importing into every existing domestic regulation-making power the ability to use that power for the purpose of giving effect to EC law where the instrument of EC law falls within the scope of the Act in question. It is very clear. We are engaged in a serious legal brick-building exercise. We have the baseline of the Constitution of the country, under which we brought in the European Communities Act 1972 Act. We also have the baseline or common European directives passed by the Council of Ministers and the European Parliament. Linking the two, on behalf of the citizens of Ireland, is this new Bill, which grants power to ensure that the primary Acts of Parliament passed over the centuries and also the statutory instruments and secondary legislation created are accepted in law by the courts as legal instruments, connect with European directives and conform with the Constitution. We are doing no more and no less. This represents good law making.

Section 4 is required to validate any regulations which may have been made under purely domestic regulation-making power but which give effect to European Union law within the scope of the Act in which the power appears. The regulations being validated come within the ambit of the power to make regulations which was already granted by the Oireachtas, save that the Oireachtas did not specify that the power could be used for the purpose of giving effect to European Union law. The Oireachtas presumed that it was giving the power but it did not specify that fact. The position is being rectified by means of this Bill.

We are importing into every such instance of the power to which I refer the power to make regulations not only for the domestic purposes specified in legislation but also for the purpose of giving effect to European Union law in areas which fall within the parameters of that legislation. It is, therefore, appropriate to validate the regulations made and which, because of the judgments in Browne and Kennedy cases, are now in doubt. Many such regulations deal with matters of a very technical nature, such as, for example, the rules relating to the identification of animals. It is only the regulatory matters that are being saved by section 4. The latter provides that no regulations which conflict with the constitutional right of any individual can be saved by that provision.

The approach adopted in section 4 of validating existing secondary legislation reflects an approach adopted in a number of previous instances. It was used, for example, in section 4 of the Immigration Act 1999, which was the subject of a challenge in Leontjavav. the Director of Public Prosecutions. In the case to which I refer, the Supreme Court upheld the constitutionality of the approach, namely, incorporating instruments by reference rather than verbatim in the body of an Act. The Supreme Court has, therefore, already made a decision, the basis of which is similar to what we are seeking to achieve. What we are doing conforms with successive Supreme Court decisions, the Constitution, our major corpus of law and secondary legislation.

Senator Quinn and others raised a number of issues. A statutory instrument must be published inIris Oifigiúil, the official journal of the State, and the national newspapers, and it subject to the courts. Any Department worth its salt will publish, by press release, decisions signed by Ministers in the form of statutory instruments.

Several times.

Indeed, usually on the day before they are published in the newspapers. Statutory instruments appear in the newspapers andIris Oifigiúil on the same day. If a person is prosecuted under the statutory instrument, the latter must stand, in the first instance, the test of the court where the prosecution takes place. It must also stand the test of an appeal being taken from a lower to a higher court in respect of a particular matter.

Statutory instruments must face the same rigours as primary legislation. They must also stand the tests to which I refer and be cleared by the Attorney General and the Parliamentary Counsel. They are, therefore, subject to strong legal scrutiny. In addition, there is an obligation to ensure that a Minister taking a decision is doing so on behalf of the Government and the Oireachtas. On that basis, I deem that section 4 is critical to the sustainability of law and I ask the House to validate it.

Question put and declared carried.
Section 5 agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

If this debate has revealed anything, it is an undercurrent of concern among Senators regarding the process involved in how information relating to the laws, directives and statutory instruments of the European Union emerges and is communicated to the public. In that context, I again suggest to the Minister of State that when he is reflecting on this matter and on the wider issue of the European constitution which, as the Taoiseach indicated, will soon be before the people, the administration and execution of business of the Sub-Committee on European Scrutiny be reviewed.

A number of Members have had experience of the sub-committee to which I refer. Its work is obtuse, complicated, highly technical and complex. I fully appreciate that the directives are highly technical and legalistic in nature. I am grateful to one of the Minister of State's officials who pointed out that a number of countries adopted an attitude that is the opposite of that which obtains in this country in respect of the processing of directives. The parliaments in the countries to which I refer deal with directives, statutory instruments and regulations as primary legislation, with the result that their business is now in a tangle. Italy is one of the countries in question and its Parliament must debate,ad nauseam, every item that comes from Europe. That is the other side of the equation.

I will not repeat what I said earlier. However, I hope that, in the interests of all the issues raised in this debate, namely, accountability, transparency, due process and, most importantly, the needs of the electorate, to the members of which we are all responsible, a review might be carried out into how directives, statutory instruments, etc. are transposed into Irish law. We might then, perhaps, be in a position to take a more positive view of Europe. As the Minister of State indicated, the figure in this regard — 87% — is quite high. If, however, people were obliged to listen to what we have been obliged to listen to in this debate, would it remain at that level?

I thank the Minister of State for his willingness to listen to the views of Members. I concur with Senator Mooney's comments. The majority of Members of the House are pro-European. Where small difficulties arise, we would like them addressed and dealt with in order that room for doubt is not created among members of the public. I welcome the Minister of State's comments on the statistics relating to polls in the context of what the people of Ireland think of Europe. When a real vote on what people think of Europe took place in the first referendum on the Nice treaty, however, and notwithstanding what the opinion polls had indicated, citizens voted differently when there was room for doubt. We need to fill the void in this regard.

Senator Mooney referred to the Sub-Committee on EU Scrutiny, of which I am a member. At 9.30 a.m. every second Thursday, the sub-committee deals with 50, 60 or 70 proposals from Europe. It is removed in every respect from the public yet each of those proposals and submissions is of great importance to every citizen. We must find some way to ensure the public knows what is done on its behalf and the relevance of the work of the Sub-Committee on EU Scrutiny.

Some time in the past 12 months we had a Europe day in the Oireachtas, at the instigation of Deputy Quinn, which worked well. A token Europe day every now and then is not enough. Who knows which of us will be here when the Oireachtas considers further reform of its business? I hope by then it will be moving towards devoting one day every week or ten days, or one week in every five or six to European issues which require that time. To have the sub-committee meeting every second week, and the Oireachtas Joint Committee on European Affairs trying to find a slot between other committees with us rushing in and out of meetings is not the way to do business.

The European Union is so relevant to every citizen that the Parliament needs to give it a little more respect. If we do that, the people will respond even more enthusiastically as we begin the next phase of EU development and further treaty debate.

I thank the Minister of State and his officials for their attention to the details in and queries raised on this Bill. Some of my words may have appeared anti-official but that was not my intention, apart from being pro-democracy. Senator Mooney touched on my concerns which stretch to the overall EU ideal and the danger that we will lose the trust and confidence of the citizens. There must be a better way to scrutinise legislation, perhaps through reform of the Seanad.

Part of my reason for being anti-statutory instrument was that in 1970, I won a case in the Supreme Court on the basis of a statutory instrument written in 1938. That was the only case that ever went to the Supreme Court on Article 44, which covers discrimination on the grounds of religion, and it was found that the statutory instrument fell short of the Constitution. I will tell the Minister of State about it some other time. That is one reason I have a personal interest in ensuring that legislation goes through in the full light of consideration by Parliament.

I thank the Minister of State and his officials for processing this Bill in the Seanad and for making it somewhat easier to understand. When I started to read this Bill I found it very technical. I agree with many of the points raised on the other side of the House in respect of transparency and that there is too much power going in one direction.

We do not emphasise enough the importance of getting the message out to the electorate. I would like the Minister of State to push for this House to have responsibility for informing the electorate about how the European Union works. That is the core of this Bill. We all worry that the so-called Mr. European is out there and is not involved with us. This is becoming more important in respect of directives. We must use this House, and the Forum on Europe and the Oireachtas Joint Committee on European Affairs to get our message out. I wish the Minister of State well in bringing the Bill through the Dáil.

I sincerely thank the Leas-Chathaoirleach and all the Senators for their speedy consideration of this Bill. I appreciate the sincerity, commitment and dedication people bring to this House and admire the legislative work done here.

I especially thank Senator Quinn for alluding to the fact that he was involved in a Supreme Court decision in 1970. I will ask some of the lawyers who support us as outstanding officials to dig that out, and I may read it over Christmas or afterwards. It shows how we, as citizens who become legislators, can be involved in the process which helps to make us better legislators.

I am grateful to everybody in the House whose lead and positive attitude to the Bill and to the European project I hope will be followed by our colleagues in the Dáil. We are here to ensure that we have the fairest, most balanced and even-handed legislative process possible for the citizens, taking into account our responsibilities under the Constitution and as members of the European Union.

We have done a good day's work for which I am deeply grateful. I thank the Leas-Chathaoirleach, the Clerk to the Seanad and all the staff and officials from the Department for their tremendous work. I wish a very happy Christmas to all.

Question put and agreed to.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.